Friday, 11 September 2015

We had better not count chickens
but it was heartening to see the report by Chloe Smith in the Law Society
Gazette yesterday about evidence presented to a House of Lords committee this
week.

The headline assertion is that
fees for Employment Tribunal claims are taking away the incentive for employers
to engage in the Early Conciliation scheme
(EC) introduced last year.

On the face of it, EC was a
cracking innovation. The essence of it
is a rule that sacked employees and others with complaints against their
(former) employer cannot begin Tribunal proceedings until they have attempted
mediation.

ACAS has a responsibility for the
management of the scheme. I have
expressed doubts about the adequacy of resources and procedures there before. I have seen very little information on how
the scheme has worked in practice over the last 12 months.

But the big thing with mediation,
from the outset, has been the difficulty of forcing participation. I first
wrote about this in Mediation's Achilles heel and have made the point that in this scenario you can usually make the horse drink
but the question is whether you can get it to water?

The EC scheme is clever in its
simplicity. You can’t begin a claim
unless you have attempted mediation and have a code number to prove it, to be
displayed on your application to the Employment Tribunal if and when efforts
fail. We all know of course about the
short time limits in the Tribunal and further legislation provides that time
stands still for a short period whilst attempts are made to settle.

The new scheme came in a year
after the introduction for the first time of fees for Tribunal claims. The
detail was examined in Fire at will
and the most relevant statistic is that it now costs an unfair dismissal
claimant a total of £1,200 in tribunal fees to pursue a claim.

That’s somewhere close to the
average monthly wage and, to be clear, that’s for tribunal fees only – no
solicitors costs included in that figure.

A lot of us said that this would
have a devastating impact on claims and effectively amount to a barrier to
justice. The figures have demonstrated
that, as reported in Access denied.

The trade union, Unison, has made two attempts to
judicially review the fees regime and been unsuccessful but was encouraged by
comments by Court of Appeal judges last week - see Judges urge review of tribunal fees.

Now the House of Lords Committee
has been told of the effects in practice.
One specialist said that there is a clear shift towards employers just
saying “no, issue your claim and then we will talk”.

In individual cases, employers
are far more inclined to take the risk that proceedings will be issued, knowing
that the majority of claimants have so much to lose, sums that they simply cannot
afford. Worse than that, according to one employment silk, the collective
effect of this is that employers are being more bullish across the board
because they feel less pressure to settle matters generally and have more
available budget for legal fees to fight!

At the end of the day it is quite
simply a system that does not work because it is so horrifically one-sided. We can expect the same to happen
in many civil claims in our county courts as a result of the eye-watering
increases in court fees rushed in by the former Lord Chancellor, Christopher
Grayling, just prior to the election.
See Road to ruin.

I explained there why mediation
is not the silver bullet. It is
consensual. It won’t work where one side
holds all or most of the cards and simply wants to win.

Let’s have a quick look again at how that works in practice. I’ll play the bad guy, hell bent on winning at all costs...

Decent person – “this court business is all too expensive for me but fortunately there is a practical alternative to help us reach an agreement that you should pay me at least some of the money I think I am entitled to. Let’s go and mediate.

Me – Go boil your head.

Decent person – Oh please! I can’t afford to go to court. Can’t we mediate? Everybody says it’s such a good thing.

Me – “have a nice day – loser”.

(Sound of door slamming followed by tears)

Here is the weakness of mediation
– of which, don’t get me wrong, I am an advocate – because you can’t, save by
some fundamental changes to the principles of our justice system, force it upon
people. Some would say that it is akin to
trying to negotiate with a terrorist.

Former US president Theodore Roosevelt is famous for the maxim, “speak softly and carry
a big stick”. There are no two ways about it –
that is the reality of litigation. I am
all for speaking softly, nicely, collaboratively - and trying to engineer a
solution which is good for everybody involved.

But rarely can it be done without
the threat of something more unpleasant if the opposition won’t play ball. It needs a big stick.

The trouble is – as this
government will now find on the road to Damascus – that all the big sticks
are on one side of the table, because nobody on the other side of the table can
afford one.